The Directive recognises the importance of self regulation mechanisms and clarifies the role that code owners and self regulatory bodies can play in enforcement.
In particular, based on Article 10 of the Directive, Member States may, in addition to ensuring effective enforcement of the Directive (as required by Art 11 of the Directive), encourage the control exercised by code owners on unfair commercial practices.
When the rules included in self regulatory codes are strict and rigorously applied by code owners they may indeed reduce the need for administrative or judicial enforcement action. Moreover, when the standards are high and industry operators largely comply with them, such rules may be a useful term of reference for national authorities and courts in assessing whether, in a concrete case, a commercial practice is unfair.
Specific provisions of the Directive on self regulation
The Directive contains several provisions which aim at preventing traders from unduly exploiting the trust which consumers may have in self regulatory codes. The Directive does not provide for specific rules on the validity of a code of conduct but it relies on the assumption that misleading statements about a trader's affiliation or about the endorsement from a self regulatory body may per se not only distort the economic behaviour of consumers but also undermine the trust that consumers have in self regulatory codes.
In addition to Article 6, obliging a trader to comply with a code of conduct to which he or she has committed in a commercial communication, the Directive contains specific "black-listed" provisions which aim at ensuring that traders make responsible use of codes of conduct in their marketing activities.